Proposed Rule Making:
Amendment of Subdivision 360-7.5(a) of Title 18 NYCRR
(Reimbursement for Paid Medical Expenses)
| Publication Date: 05/17/2006 | Comment Period Expiration: 07/01/2006 |
Proposed Text and Statements:
Pursuant to the authority vested in the Commissioner of Health by section 206 (1)(f) of the Public Health Law and section 363-a (2) of the Social Services Law, subdivision (a) of section 360-7.5 of Title 18 (Social Services) of the Official Compilation of Codes, Rules and Regulations of the State of New York is amended as follows to be effective upon publication of a Notice of Adoption in the New York State Register:
Subdivision (a) of section 360-7.5 is repealed and a new subdivision (a) is added to read as follows:
(a)(1) Except as provided in paragraphs (2) through (4) of this subdivision, payment by the MA program for services covered under the program which are medically necessary in amount, duration, and scope, will be made to the enrolled MA provider which furnished the services, at the MA rate or fee in effect at the time the services were provided.
(2) Payment may be made to:
(i) a practitioner's employer if the practitioner would be required to do so as a condition of employment;
(ii) the facility in which such services were provided if the facility submits the claim under a contract between a practitioner and the facility; or
(iii) an organization, including a health maintenance organization, which furnishes health care through an organized health care delivery system, if there is a contract between the organization and the practitioner under which the organization bills or receives payment for the services.
(3)(i) Payment may be made to a recipient or the recipient's representative for paid medical bills if:
(a) an erroneous MA eligibility determination is reversed (whether the reversal is due to the social services district discovering its own error or is the result of a fair hearing decision or court order), or the social services district fails to determine MA eligibility within the time periods set forth in section 360-2.4 of this Part; and
(b) the erroneous eligibility determination or the delay in determining eligibility caused the recipient or the recipient's representative to pay for medically necessary services which otherwise would have been paid for by the MA program.
(ii) Payment under this paragraph is not limited to the MA rate or fee in effect at the time the services were provided, but may be made to reimburse the recipient's or the recipient's representative's reasonable out-of-pocket expenditures. In addition, payment under this paragraph may be made with respect to services furnished by a provider who is not enrolled in the MA program, if such provider is otherwise lawfully qualified to provide the services, and had not been excluded or otherwise sanctioned from the MA program under Part 515 of this Title.
(iii) For purposes of subparagraph (ii) of this paragraph, an out-of-pocket expenditure will be considered reasonable if it does not exceed 110 percent of the MA payment rate for the service. If an out-of-pocket expenditure exceeds 110 percent of the MA payment rate, the social services district will determine whether the expenditure is reasonable. In making this determination, the district may consider the prevailing private pay rate in the community at the time services were rendered, and any special circumstances demonstrated by the recipient.
(4) Payment may be made to a recipient or the recipient's representative for paid medical bills for services received during the recipient's retroactive eligibility period, provided that the recipient was eligible in the month in which the services were received, in accordance with the provisions of this paragraph.
(i) For services received during the period beginning on the first day of the third month prior to the month of the MA application and ending on the date the recipient applied for MA, payment can be made without regard to whether the provider of services was enrolled in the MA program. However, if the services were furnished by a provider not enrolled in the MA program, the provider must have been otherwise lawfully qualified to provide such services, and must not have been excluded or otherwise sanctioned from the MA program under Part 515 of this Title. If services were provided when the recipient was temporarily absent from the State, payment will be made if: MA recipients customarily use medical facilities in the other state; or the services were obtained to treat an emergency medical condition resulting from an accident or sudden illness.
(ii) For services received during the period beginning after the date the recipient applied for MA and ending on the date the recipient received his or her MA identification card, payment may be made only if the services were furnished by a provider enrolled in the MA program.
Regulatory Impact Statement
Statutory Authority:
Section 206(1)(f) of the Public Health Law requires the Department of Health (Department) to enforce the provisions of the medical assistance program, pursuant to titles eleven, eleven-A, and eleven-B of the Social Services Law (SSL). Section 363-a(2) of the SSL requires the Department to establish such regulations as may be necessary to implement the program of medical assistance for needy persons (Medicaid).
Legislative Objectives:
Section 363-a of the SSL designates the Department as the single State agency responsible for implementing the Medicaid program in this State, and requires the Department to promulgate any necessary regulations which are consistent with federal and State law. The proposed regulatory amendments are necessary to implement the federal district court orders in Greenstein, et al. v. Dowling, et al. and Carroll, et al. v. DeBuono and the decision of the Court of Appeals in Seittelman, et al. v. Sabol, et al.
Needs and Benefits:
The Greenstein, Carroll and Seittelman orders impact the Department's requirements regarding when a recipient may be reimbursed for medical expenses he/she has paid during certain periods when he/she was eligible for Medicaid, and the amount of such reimbursement. Current regulations provide that a recipient or his/her representative may be reimbursed for paid medical expenses which should have been paid under Medicaid, when an erroneous determination of ineligibility is reversed by a fair hearing or court order, or by a social services district discovering its own error. Reimbursement is limited to the Medicaid rate or fee in effect at the time medical care or services were provided. A recipient or his/her representative may also be reimbursed for paid medical expenses incurred during the period beginning three months prior to the month of application for Medicaid, and ending with the recipient's receipt of his/her Medicaid identification card (the retroactive period). The individual must be eligible in the month in which the medical care or services were provided, and the medical care or services must have been provided by a provider enrolled in the Medicaid program.
In Greenstein, the court enjoined the Department from enforcing the policy limiting corrective payments to the Medicaid rate or fee in effect at the time the services were provided, when an erroneous determination caused the recipient or his/her representative to pay for medical services which should have been paid under Medicaid.
The proposed regulations would reflect the settlement in Greenstein which provides that reimbursement of medical expenditures paid by the recipient or his/her representative due to an erroneous determination of ineligibility must not be limited to the Medicaid rate or fee. The settlement also provides that such expenditures are not required to be reimbursed to the extent that such expenditures exceed a reasonable amount.
The plaintiffs in Seittelman and Carroll challenged the Department's policy of limiting reimbursement of paid medical expenses incurred during the retroactive period to services furnished by providers enrolled in the Medicaid program. The courts agreed, but only for the period commencing on the first day of the third month prior to the month of application and ending upon the date of application for Medicaid. Thus, the proposed regulation would no longer limit reimbursement for paid expenses incurred during such period to Medicaid enrolled providers. However, the provider must be lawfully permitted to provide the services for which the recipient is requesting reimbursement. Reimbursement continues to be limited to the Medicaid rate or fee in effect at the time the services were provided.
Costs:
The Department estimates that the proposed rule, which is required to comply with court orders regarding reimbursement of medical expenses, will result in an annual increase in the State and aggregate local share of Medicaid expenditures of approximately 0.75 to 1.15 million dollars each. There will be no other costs to the Department for implementation or to regulated parties.
Local government mandates:
Social services districts currently process requests for reimbursement from recipients who have paid medical expenses which should have been paid by Medicaid. These regulatory amendments may result in a greater volume of such requests due to the requirement to consider bills from non-Medicaid enrolled providers. Also, additional local expenditures may result from the requirement to reimburse amounts above the Medicaid rate or fee.
Paperwork:
No new reporting requirements, forms, or other paperwork are necessitated by this proposed regulatory amendment. Existing claim forms will be used.
Duplication:
The proposed regulatory amendments do not duplicate any existing State or federal requirements.
Alternatives:
The proposed regulatory amendments are required as a result of the Greenstein, Carroll and Seittelman court orders. No alternatives were considered.
Federal standards:
Federal regulations are silent on these issues.
Compliance schedule:
Social services districts will be able to implement the proposed amendments when the amendments become effective.
Contact person: William R. Johnson
NYS Department of Health
Office of Regulatory Reform
Corning Tower Bldg., Room 2415
Empire State Plaza
Albany, New York, 12237
(518) 474-7488
(518) 486-4834 FAX
REGSQNA@health.state.ny.us
Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis of this proposed rulemaking is not required by Section 202-b of the State Administrative Procedure Act. This proposed rulemaking would clarify Department regulations which reflect the Department's policy on reimbursement of paid medical expenses for eligible recipients of Medical Assistance. These changes will have a direct impact on this Department and on local social services districts. They will have no effect on any type of small business and there are no new small business record keeping requirements, needed professional services, or compliance costs associated with these regulations.
In ascertaining that the proposal will not impose any new reporting, record keeping or other compliance requirements on small business, the Department examined the existing relationships which social services districts have and can have with vendors providing services and/or supplies and found that such relationships will not be affected. A regulatory flexibility analysis is, therefore, not required.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis statement for this proposed action is not required. The proposed amendment would not impose any adverse impact on rural areas nor will the proposed amendment impose any new reporting, record keeping or any other new compliance requirements on public or private entities in rural areas. This proposed rulemaking will clarify Department regulations reflecting the policy on reimbursement of paid medical expenses for eligible recipients of medical assistance as required by court orders.
Job Impact Statement
Nature of Impact:
A Job Impact Statement is not required. The proposal will not have an adverse impact on jobs and employment opportunities. The proposed rule is required to comply with court orders regarding reimbursement of medical expenses.